Anthony Booth v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY K. BOOTH, in his own No. 16-17084

right and on behalf of all statutory

beneficiaries, D.C. No.

Plaintiff-Appellant, 2:11-cv-00901-

SPL

v.

UNITED STATES OF AMERICA, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Argued and Submitted December 6, 2017

San Francisco, California

Filed January 31, 2019

2 BOOTH V. UNITED STATES

Before: Mary M. Schroeder and Marsha S. Berzon, *

Circuit Judges, and Sara Lee Ellis, ** District Judge.

Opinion by Judge Sara L. Ellis

SUMMARY ***

Federal Tort Claims Act

The panel affirmed the district court’s summary

judgment in favor of the United States in a Federal Tort

Claims Act (“FTCA”) action alleging that a United States

agency negligently caused plaintiff’s father’s death while

plaintiff was a minor.

The district court found that the claims were time-barred

because the minor’s representative submitted them too late.

The minor argued on appeal that his minority should have

operated to toll the statute of limitations on his claims.

The panel held that there is no minority tolling of the

FTCA’s statute of limitations. The panel further held that

the Supreme Court’s decision in United States v. Wong, 135

*

This case was submitted to a panel that included Judge Kozinski,

who retired. Following Judge Kozinski’s retirement, Judge Berzon was

drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge

Berzon has read the briefs and reviewed the record.

**

The Honorable Sara Lee Ellis, United States District Judge for the

Northern District of Illinois, sitting by designation.

***

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

BOOTH V. UNITED STATES 3

S. Ct. 1625 (2015), did not suggest, let alone hold, that

minority tolling applied to the FTCA. The panel also held

that minority alone does not merit equitable tolling of the

FTCA’s statute of limitations. Accordingly, the panel

affirmed the district court’s judgment in favor of the

government.

COUNSEL

John P. Leader (argued), The Leader Law Firm, Tucson,

Arizona, for Plaintiff-Appellant.

Ann E. Harwood (argued), Assistant United States Attorney;

Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A.

Strange, Acting United States Attorney; United States

Attorney’s Office, Phoenix, Arizona; for Defendant-

Appellee.

OPINION

ELLIS, District Judge:

Plaintiff-Appellant Anthony K. Booth claims that a

United States agency negligently caused his father’s death

while Booth was a minor. Because Booth was a minor, his

mother, acting as his representative, sued the United States

pursuant to the Federal Tort Claims Act (“FTCA”),

28 U.S.C. § 2671 et seq. The district court found that the

claims were time-barred because Booth’s representative

submitted them too late. Booth appeals, arguing that

minority should operate to toll the statute of limitations on

his claims. Because we conclude that prior decisions

holding that there is no minority tolling for the FTCA’s

4 BOOTH V. UNITED STATES

statute of limitations remain binding, and conclude that

minority tolling is a separate statutory matter from equitable

tolling, we affirm the district court’s decision.

I. Procedural and Factual Background

Booth’s father, also named Anthony Booth, died in a car

accident on an Arizona highway on February 19, 2005. The

younger Booth was weeks from his tenth birthday when he

lost his father.

Booth’s mother, Marlene June, timely filed an

Administrative Form 95 with the Federal Highway

Administration (“FHWA”), and on May 5, 2011, filed suit

against the United States in federal court in Arizona, on

behalf of Booth and other statutory beneficiaries (the late

Anthony Booth’s mother, daughters, and other son), alleging

that a highway barrier that failed during the highway

accident was not tested and approved in accord with FHWA

rules. 1 Booth was fifteen years old when June filed the

administrative claim and sixteen years old at the time she

filed the lawsuit.

The FTCA requires administrative exhaustion and sets

time limits for both exhaustion and the filing of a lawsuit.

“An action shall not be instituted upon a claim against the

United States for money damages for injury or loss of

property or personal injury or death caused by the negligent

or wrongful act or omission of any employee of the

Government . . . unless the claimant shall have first

presented the claim to the appropriate Federal agency and

1

Booth later substituted in as named plaintiff when he turned 18,

hence the title of this appeal. But for a good portion of the suit, June was

the named plaintiff. We refer in this opinion to the appropriate named

plaintiff for the pertinent time period under discussion.

BOOTH V. UNITED STATES 5

his claim shall have been finally denied by the agency in

writing and sent by certified or registered mail.” 28 U.S.C.

§ 2675. “A tort claim against the United States shall be

forever barred unless it is presented in writing to the

appropriate Federal agency within two years after such claim

accrues . . . .” 28 U.S.C. § 2401(b). Such a tort claim is also

barred “unless action is begun within six months after the

date of mailing, by certified or registered mail, of notice of

final denial of the claim by the agency to which it was

presented.” Id. 2

The Government moved to dismiss June’s case, arguing

that the FTCA’s statute of limitations could not be tolled.

The district court agreed, finding that the claim had accrued

more than two years before June presented it to the federal

agency and holding that, under Ninth Circuit precedent, the

FTCA’s statute of limitations is not subject to equitable

tolling or tolling for minority of the injured party. June

appealed.

While June’s appeal was pending, an en banc panel of

this Court was considering Wong v. Beebe, 732 F.3d 1030

(9th Cir. 2013) (en banc). Wong also involved tolling of the

FTCA’s statute of limitations. The plaintiff-appellant in

Wong sought equitable tolling of the FTCA’s statute of

limitations for the time to file suit after bringing a claim to

the administrative agency. Id. at 1034. We held that the

FTCA’s statute of limitations is not jurisdictional and is

subject to equitable tolling. Id. at 1047, overruling Marley

v. United States, 567 F.3d 1030 (9th Cir. 2009).

2

We refer to the two-year and six-month statute of limitations

collectively in this opinion as the FTCA’s statute of limitations.

6 BOOTH V. UNITED STATES

After Wong, the panel hearing June’s initial appeal

issued a memorandum disposition that reversed the district

court’s decision granting the Government’s motion to

dismiss June’s lawsuit and remanded the issue of equitable

tolling to the district court. June v. United States, 550 F.

App’x 505 (9th Cir. 2013) (unpublished decision). The

Government then sought certiorari for both that decision and

Wong.

The Supreme Court took both cases, addressing and

affirming them both and ruling that the FTCA’s statute of

limitations (both the two-year time limit after accrual for

presenting claims to the administrative agency and the six-

month time limit for suit after denial of a claim by an agency)

is not jurisdictional, but instead is subject to equitable

tolling. United States v. Wong (“Wong/June”), — U.S. —,

135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015). The Supreme

Court remanded June’s case.

June’s case resumed in district court. Booth, having

reached the age of majority by this time, substituted in as

named plaintiff. The Government then moved for summary

judgment, arguing that Booth’s claim was barred by the

FTCA’s statute of limitations because June, as Booth’s

representative, did not file a claim with the administrative

agency until more than five years after Booth’s father’s car

accident and there were no circumstances that called for

equitable tolling. Booth cross-moved for summary

judgment, arguing that the statute of limitations should be

tolled because the nature of the Government’s involvement

in the car accident had been concealed, and because Booth

had been a minor at the time of the accident, at the time June

filed an administrative claim, and at the time June filed suit.

The district court granted the Government’s motion for

summary judgment. The district court held, as it had

BOOTH V. UNITED STATES 7

determined before the appeal, that Booth’s claim accrued on

the day of his father’s accident, February 19, 2005, and that

Booth had submitted his claim to the FHWA more than two

years later, through his mother June, on December 16, 2010.

The district court concluded that Booth could not equitably

toll the statute of limitations on concealment grounds and

also that Booth had waived any argument that his age tolled

the statute of limitations, as he had failed to raise the issue in

the prior appeal. Booth moved for reconsideration. The

district court denied the motion, and Booth timely appealed.

II. Standard of Review

The Court reviews the district court’s grant of summary

judgment de novo. Estate of Lopez ex rel. Lopez v. Gelhaus,

871 F.3d 998, 1005 (9th Cir. 2017). We adopt the same

standard used by the district court and “view the evidence in

the light most favorable to the nonmoving party, determine

whether there are any genuine issues of material fact, and

decide whether the district court correctly applied the

relevant substantive law.” Animal Legal Def. Fund v. U.S.

Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016).

III. Analysis

On appeal, Booth asserts that his status as a minor during

most of these proceedings tolls the FTCA’s statute of

limitations—specifically that portion of the statute of

limitations that requires a plaintiff to file a claim with the

responsible agency within two years of the accrual of the

8 BOOTH V. UNITED STATES

claim. 3 28 U.S.C. § 2401(b). No longer considered

jurisdictional, the FTCA’s statute of limitations can now be

tolled, Wong, 732 F.3d at 1047, including for equitable

considerations, Wong/June, 135 S. Ct. at 1633 (“The time

limits in the FTCA are just time limits, nothing more. Even

though they govern litigation against the Government, a

court can toll them on equitable grounds.”). Booth argues

that minority tolling—the rule applicable in many

circumstances that statutes of limitations are tolled during

the minority of the would-be plaintiff—should be applicable

under the FTCA. He also maintains being a minor is

sufficient for equitable tolling of the FTCA’s statute of

limitations.4

3

Booth does not challenge on appeal the district court’s decision

that the government’s alleged concealment does not justify equitable

tolling.

In his briefing, Booth did not challenge the district court’s

determination that his claim accrued on the day of the accident. Because

he raised the issue for the first time at argument, he has waived it. See

Harger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009).

4

We can dispose of two issues at the outset. The first is the

Government’s argument that the district court properly found that Booth

had waived the issue of minority tolling. Wong and Wong/June changed

the Ninth Circuit’s previous rule precluding any tolling of the FTCA

statute of limitations, so Booth could not have waived the question of

how that change affects minority tolling. See Gallardo v. United States,

755 F.3d 860, 865 (9th Cir. 2014) (equitable tolling issue not waived

when not raised before Wong). The second is Booth’s argument that

Arizona’s minority tolling statute applies and tolls the FTCA’s statute of

limitations. State rules on minority tolling do not apply. “A court must

look to state law for the purpose of defining the actionable wrong for

which the United States shall be liable, but to federal law for the

limitations of time within which the action must be brought.” Poindexter

v. United States, 647 F.2d 34, 36 (9th Cir. 1981); see also Santos ex rel.

BOOTH V. UNITED STATES 9

A. The Rule Against Minority Tolling of the FTCA’s

Statute of Limitations Should Continue to Apply

Minority tolling statutes provide that if a cause of action

accrues when a plaintiff is a child, the statute of limitations

on that cause of action is suspended until the plaintiff attains

the age of majority. The policy reason underlying such

statutes, as enunciated by one state appellate court in this

Circuit, is “[b]ecause a minor does not have the

understanding or experience of an adult, and because a minor

may not bring an action except through a guardian . . .

special safeguards are required to protect the minor’s right

of action.” W. Shield Investigations & Sec. Consultants v.

Superior Court, 82 Cal. App. 4th 935, 947 (Ct. App. 2000)

(quoting L.C. Amie v. Superior Court, 99 Cal. App. 3d 421,

426 (Ct. App. 1979)), disapproved of on other grounds by

Gatto v. County of Sonoma, 98 Cal. App. 4th 744 (Ct. App.

2002). The states in this Circuit all have statutes providing

for minority tolling for state-law tort claims. See Alaska

Stat. § 09.10.140(a); Ariz. Rev. Stat. Ann. § 12-502; Cal.

Civ. Proc. Code § 352(a); Haw. Rev. Stat. § 657-13; Idaho

Code § 5-230; Mont. Code Ann. § 27-2-401(1); Nev. Rev.

Stat. § 11.250; Or. Rev. Stat. § 12.160(1)–(2); Wash. Rev.

Code § 4.16.190(1).

As the Fourth Circuit has recognized, “[t]he blackletter

rule . . . is that a statute of limitations runs against all

persons, even those under a disability, unless the statute

expressly provides otherwise.” Vogel v. Linde, 23 F.3d 78,

80 (4th Cir. 1994). The Supreme Court long ago recognized

this rule as extending to minority tolling: “The exemptions

from the operation of statutes of limitations, usually

Baeato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (“[S]tate-law

tolling statutes do not apply to the FTCA’s limitations period.”).

10 BOOTH V. UNITED STATES

accorded to infants . . . , do not rest upon any general

doctrine of the law . . . but in every instance upon express

language in those statutes giving them time, after majority

. . . to assert their rights.” Vance v. Vance, 108 U.S. 514,

521, 2 S. Ct. 854, 27 L. Ed. 808 (1883); see also United

States v. Alvarez, 710 F.3d 565, 568 n.10 (5th Cir. 2013)

(“The federal courts have consistently rejected requests to

create tolling exceptions for minors, reasoning that in the

absence of an express legislative directive to the contrary,

parents and guardians are assumed to be adequate

surrogates.”). Federal courts have consistently applied

Vance, following minority tolling for federal statutes of

limitations only if the statute setting out the limitations

period so specifies. 5 See, e.g., Alvarez, 710 F.3d at 567;

Vogel, 23 F.3d at 80.

Consistent with the Vance principle, we have never

recognized minority tolling for the FTCA’s statute of

limitations. See Papa v. United States, 281 F.3d 1004, 1001

(9th Cir. 2002) (“The time limitation for FTCA claims is not

tolled during a claimant’s minority.”); Landreth ex rel. Ore

v. United States, 850 F.2d 532, 534 (9th Cir. 1988) (“The

fact of minority does not toll the statute.”); Fernandez v.

United States, 673 F.2d 269, 271 (9th Cir. 1982) (noting that

no minority tolling applies under the FTCA); Mann v. United

5

Minority tolling may be available for federal causes of action that

borrow the statute of limitations from state law such as § 1983, but only

if the relevant state law also includes a minority tolling provision and

that provision is not “inconsistent with the federal policy underlying the

cause of action under consideration.” Bd. of Regents of Univ. of N.Y. v.

Tomanio, 446 U.S. 478, 485, 100 S. Ct. 1790, 64 L.Ed.2d 440 (1980);

see also Bishop v. Children’s Ctr. for Developmental Enrichment,

618 F.3d 533, 538 (6th Cir. 2010). As already noted, state tolling

provisions do not apply to the FTCA’s limitations period. See

Poindexter v. United States, 647 F.2d at 36.

BOOTH V. UNITED STATES 11

States, 399 F.2d 672, 673 (9th Cir. 1968) (“The [FTCA] time

limitation is not tolled during a claimant’s minority.”);

Brown v. United States, 353 F.2d 578, 579 (9th Cir. 1965)

(“It is well established that minority does not toll the

limitations period prescribed in the Federal Tort Claims

Act.”); Pittman v. United States, 341 F.2d 739, 740 (9th Cir.

1965) (refusing to toll the FTCA’s statute of limitations for

a minor); United States v. Glenn, 231 F.2d 884, 887 (9th Cir.

1956) (same).

Congress, if so minded, may establish exceptions for

certain disabilities—including minority—and has done so in

various federal statutes. See, e.g., 18 U.S.C. § 2255(b)(2);

28 U.S.C. § 2501. By contrast, the FTCA began with a

statute of limitations that was “without express qualification

for legal disability,” and each time Congress amended the

limitation period, it did not add a tolling provision. Glenn,

231 F.2d at 886; see also 28 U.S.C. § 2401(b). Indeed,

Congress considered proposed amendments providing for

minority tolling of the FTCA’s statute of limitations. E.g.,

H.R. 3260, 3261, 101st Cong. (1989). But these proposed

amendments have not become law. Had Congress wanted to

include minority tolling in the FTCA’s statute of limitations,

it could have done so.

Booth asks that we ignore the prior FTCA case law

rejecting minority tolling here, arguing that Wong/June

requires that we abandon sixty years of precedent.

Wong/June says nothing to indicate that our past decisions

on this discrete issue are incorrect. The Supreme Court was

silent on minority tolling. And we have grounded our rule

against minority tolling in part on considerations

independent of whether the FTCA’s statute of limitations is

jurisdictional. Our case law emphasizes that Congress does

not appear to have intended to expand that waiver of

12 BOOTH V. UNITED STATES

immunity for the entire time an injured party is a minor. See

Pittman, 341 F.2d at 741 (“We do not believe that the

Congress could have intended that infants have up to

21 years for a statute of limitations.”). Under these cases,

the parent or guardian holds a legal duty to take action on

behalf of the minor child. Landreth, 850 F.2d at 534. The

parent’s knowledge of the injury and its cause is imputed to

the minor, leaving the parent responsible for initiation of suit

in a timely manner. Id. These considerations have no

relation to whether the statute of limitations is

jurisdictional. 6 In short, the Supreme Court’s decision in

Wong/June does not suggest, let alone hold, that minority

tolling applies to the FTCA.

As Booth recognizes, the statute of limitations for non-

tort claims brought against the United States, which is also

found under § 2401, does contain a tolling provision. See

28 U.S.C. § 2401(a) (“Except as provided by chapter 71 of

title 41, every civil action commenced against the United

States shall be barred unless the complaint is filed within six

years after the right of action first accrues. The action of any

person under legal disability or beyond the seas at the time

the claim accrues may be commenced within three years

after the disability ceases.”). Although, on its face, the

second sentence of subsection (a) is generic, we held in

Glenn that it is not. See 231 F.2d at 886. Glenn noted that,

although both § 2401(a) and § 2401(b) are now contained in

the same statute, they did not begin that way. See id. Based

6

Our sister circuits would appear to agree. The Third and Eight

Circuits recognized before Wong/June that the FTCA’s statute of

limitations was not jurisdictional. See Santos, 559 F.3d at 197; Schmidt

v. United States, 933 F.2d 639, 640 (8th Cir. 1991). At the same time,

these circuits held that minority tolling of the FTCA’s statute of

limitations was not available. Santos, 559 F.3d at 197; Wilson ex rel.

Wilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005).

BOOTH V. UNITED STATES 13

on the legislative history of § 2401 and the sources of

subsections (a) and (b), Glenn concluded that Congress did

not intend “that the sentence in [§ 2401(a)] qualified the

limitation on tort claims set forth in [§ 2401(b)].” Id.

Booth asks us to overrule Glenn. Putting aside that

Booth raised this argument for the first time at oral

argument, thus waiving it, we may not overrule Glenn, as

there is no Supreme Court or en banc case inconsistent with

it. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)

(en banc).

Moreover, applying subsection (a)’s tolling provision to

claims covered by subsection (b) would create an anomaly.

Under that interpretation, a formerly disabled plaintiff would

have three years to file an action after the disability ceases,

notwithstanding subsection (b)’s requirement that such

claims be filed with the agency within two years after the

claim accrues. Compare 28 U.S.C. § 2401(a) (“The action of

any person under legal disability or beyond the seas at the

time the claim accrues may be commenced within three

years after the disability ceases.” (emphasis added)), with id.

§ 2401(b) (“A tort claim against the United States shall be

forever barred unless it is presented in writing to the

appropriate Federal agency within two years after such claim

accrues . . . .” (emphasis added)). We can think of no reason

Congress would have devised such a scheme.

We therefore reject Booth’s argument that the tolling

provision in subsection (a) should apply to claims covered

by subsection (b).

14 BOOTH V. UNITED STATES

B. Tolling for Minority Status Alone Is a Statutory

Matter Separate from Equitable Tolling

Separate and distinct from the statutory concept of

minority tolling is equitable tolling. “[A] court may pause

the running of a limitations statute . . . when a party ‘has

pursued his rights diligently but some extraordinary

circumstance’ prevents him from meeting a deadline.”

Wong/June, 135 S. Ct. at 1631 (quoting Lozano v. Montoya

Alvarez, — U.S. —, 134 S. Ct. 1224, 1231–32, 188 L. Ed.

2d 200 (2014)). This is the concept of equitable tolling. “In

applying equitable tolling, courts ‘follow a tradition in which

courts of equity have sought to relieve hardships which, from

time to time, arise from a hard and fast adherence to more

absolute legal rules, which, if strictly applied, threaten the

evils of archaic rigidity.” Wong, 732 F.3d at 1052 (quoting

Holland v. Florida, 560 U.S. 631, 650, 130 S. Ct. 2563, 177

L. Ed. 2d 130 (2010)).

To obtain equitable tolling a litigant must establish

“(1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstances stood in his way.”

Id. (citation omitted). The first element requires “the effort

that a reasonable person might be expected to deliver under

his or her particular circumstances,” id. (quoting Doe v.

Busby, 661 F.3d 1001, 1015 (9th Cir. 2011)), and asks

whether the plaintiff was “‘without any fault’ in pursuing his

claim,” id. (quoting FEC v. Williams, 104 F.3d 237, 240 (9th

Cir. 1996)). The second element requires the litigant to

“show that extraordinary circumstances were the cause of his

untimeliness and . . . made it impossible to file the document

on time.” Id. (quoting Ramirez v. Yates, 571 F.3d 993, 997

(9th Cir. 2009)). “Whether a particular untimely claim may

be excused for a particular reason varies with the reason.”

Id. at 1051.

BOOTH V. UNITED STATES 15

As noted above, suspending a limitations period during

minority has been available not as a result of equitable

tolling but only where a statute expressly so provides. See

Vance, 108 U.S. at 521. Particular circumstances connected

to one’s age could support equitable tolling. For example,

there may be cause for equitable tolling if a minor is

abandoned by his parents and/or guardians and so left

unprotected. Cf. Zavala ex rel. Ruiz v. United States,

876 F.2d 780, 784 (9th Cir. 1989) (“He does not persuade us

that the alleged abandonment left him unprotected . . . .”).

Likewise, some states have recognized that equitable tolling

may be appropriate where a minor is “a ward of the state

without a next friend or guardian of his estate” or “has a

guardian of his person with interests possibly adverse to his

own,” Caron v. Adams, 638 A.2d 1073, 1079 (Conn. App.

Ct. 1994), or where the cause of action is not reasonably

knowable by the plaintiff or her parents because of her

minority, see Wimberly v. Gatch, 635 So. 2d 206, 217 (La.

1994).

Still, minority alone is not the type of exceptional

circumstance described above. In multiple cases involving

minors with FTCA claims, this Court has considered

whether minority tolling applies (and held that it does not),

and then separately considered whether equitable tolling

applies and concluded that there was not a sufficient basis

for equitable tolling. See Papa, 281 F.3d at 1011; Zavala,

876 F.2d at 784. In so ruling in Zavala, this Court noted that

the minor had “a parent who had both the duty to bring a

claim and the knowledge necessary to pursue it.” 876 F.2d

at 784. Booth has shown no evidence to indicate that this

was not the case here as well, or to indicate any extraordinary

circumstances outside of the mere fact of his minority.

16 BOOTH V. UNITED STATES

Accordingly, we hold that there is no minority tolling of

the FTCA’s statute of limitations and that minority alone

does not merit equitable tolling of the FTCA’s statute of

limitations. The district court’s grant of summary judgment

to the United States is AFFIRMED.